IN THE COURT OF APPEAL OF THE REPUBLIC OF SINGAPORE

[2023] SGCA 29

Civil Appeal No 32 of 2022

Between

COD
… Appellant
And

COE

… Respondent

Summons No 22 of 2022

Between

COD
… Applicant
And

COE

… Respondent

In the matter of Originating Summons No 925 of 2021

Between

COD
 … Applicant
And

COE

… Respondent

GROUNDS OF DECISION

[Civil Procedure — Appeals — Fresh evidence]

[Arbitration — Award — Recourse against award — Setting aside — Natural

justice]
 TABLE OF CONTENTS

INTRODUCTION............................................................................................ 1

BACKGROUND .............................................................................................. 2
PARTIES AND THE UNDERLYING DISPUTE ........................................................ 2
THE ARBITRATION........................................................................................... 3
APPLICATION TO SET ASIDE FINAL AWARD..................................................... 4

THE APPEAL IN CA 32 ................................................................................. 4

APPLICATION IN SUM 22 FOR PERMISSION TO ADDUCE

FURTHER EVIDENCE .................................................................................. 5

THE PARTIES’ SUBMISSIONS ON SUM 22 ............................................. 7

APPELLANT’S SUBMISSIONS ............................................................................ 7
RESPONDENT’S SUBMISSIONS ......................................................................... 8

ANTERIOR ISSUE: WHETHER A PARTY SHOULD BE

PERMITTED TO ADDUCE NEW EVIDENCE TO RAISE NEW
ARGUMENTS WHICH HAD NOT BEEN PUT BEFORE THE
JUDGE IN OS 925 ........................................................................................... 9

ADMISSIBILITY OF NEW EVIDENCE ON APPEAL TO SET

ASIDE AN ARBITRAL AWARD ON NON-JURISDICTIONAL
GROUNDS: THE MERITS OF SUM 22 .................................................... 15

CONCLUSION .............................................................................................. 23

i
 This judgment is subject to final editorial corrections approved by the
court and/or redaction pursuant to the publisher’s duty in compliance
with the law, for publication in LawNet and/or the Singapore Law
Reports.

COD
v
COE

[2023] SGCA 29

Court of Appeal — Civil Appeal No 32 of 2022 (Summons No 22 of 2022)

Judith Prakash JCA, Steven Chong JCA and Belinda Ang Saw Ean JCA
26 June 2023

27 September 2023

Belinda Ang Saw Ean JCA (delivering the grounds of decision of the
court):

Introduction

1 The appellant, COD, in CA/CA 32/2002 (“CA 32”) applied vide

CA/SUM 22/2022 (“SUM 22”) for liberty to adduce further evidence at the
hearing of the appeal in CA 32. This court heard SUM 22 before oral arguments
on the main appeal on 26 June 2023.

2 Both SUM 22 and CA 32 were dismissed on 26 June 2023. At the

conclusion of the oral hearing, we affirmed the Judge’s decision published in
COD v COE [2022] SGHC 126 (“COD v COE (HC)”). We agreed with the
analysis and reasoning of the Judge in refusing to set aside the arbitral award.
As we did not add to the grounds of the Judge’s decision, no written grounds
for dismissing CA 32 were required. However, we now issue our written
COD v COE [2023] SGCA 29

grounds for dismissing SUM 22. Any reference to CA 32 is only for the purpose
of providing necessary background to SUM 22.

3 The main issue in SUM 22 was whether the further evidence in the sense
of fresh or new evidence on the purported market value of two cranes that were
the subject of the underlying arbitration, might be admitted in an appeal to set
aside the tribunal’s final award issued on 21 June 2021 (“the Final Award”) in
a non-jurisdictional challenge where the new evidence had not been adduced in
the arbitration or in the setting aside application before the Judge below. A
related issue (better characterised as one that is anterior to the main issue) was
whether such an application was flawed and indeed an abuse of process and
should be dismissed in limine. Suffice it to say for now that the appellant sought
to adduce new evidence before this court in order to use that evidence as its
basis to raise new arguments on appeal which had not been canvassed before
the Judge below. Such an approach could hardly be the basis of the appeal. In
so doing, the appellant also sought to adduce new evidence in aid of a position
in the appeal which was inconsistent with the appellant’s position taken below.
A factor for consideration was whether the appellant should be permitted at the
appeal to assume a position opposite from the one taken on the same matter
before the Judge. We set out our full grounds for dismissing SUM 22.

Background

Parties and the underlying dispute

4 The appellant was a company incorporated in Singapore which was

engaged in, inter alia, leasing, building and selling offshore vessels. The
respondent, a local company, was in the business of fabricating marine and
offshore equipment.

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5 The appellant appointed the respondent to fabricate and deliver two fibre
rope cranes (the “Cranes”) under two contracts (the “Contracts”) containing the
same terms and arbitration clauses. Subsequently, the appellant terminated both
Contracts on the ground of the respondent’s non-compliance with contractual
specifications and requirements. The appellant declined to take delivery of the
Cranes.

The arbitration

6 On 6 November 2015, the respondent commenced two arbitrations

against the appellant. The two arbitrations were consolidated and will be
referred to collectively as the “Arbitration”. The respondent averred that the
appellant had breached the Contracts due to its wrongful refusal to take delivery
of the Cranes. The respondent sought specific performance and payment of the
balance contract price of the Cranes, with damages in the alternative.

7 In response, the appellant contended that the weight of the Cranes had
exceeded the contractually specified limit and that it was entitled to terminate
the Contracts. The appellant counterclaimed for the sums it had previously paid
to the respondent and other losses accruing from the respondent’s delay in the
delivery and/or non-delivery of the Cranes.

8 On 28 April 2020, the arbitral tribunal (“the Tribunal”) issued an interim

award (the “Interim Award”). The Tribunal held that while the Cranes did not
comply with the contractual specifications for weight, that non-compliance did
not justify the appellant’s termination of the Contracts. The Tribunal further
held that damages would be a just and appropriate remedy to restore the
respondent to the position it would have been had the Contracts not been

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wrongfully terminated and invited further submissions on the quantum of

damages.

9 On 21 June 2021, the Tribunal issued the Final Award. The Tribunal
awarded damages to the respondent in the following manner. First, the Tribunal
awarded to the respondent the purchase price of the Cranes together with
variation orders that increased the price, less amounts paid to the date of the
Final Award (the “Balance Price”). Next, the Tribunal deducted from the
Balance Price the resale value of the Cranes, ie, scrap value as set out in the
respondent’s witness statement.

10 The Tribunal also awarded damages to the appellant for the costs it
would have incurred in modification and rectification works due to the Cranes’
non-compliance with contractual specifications, and for the respondent’s late
delivery of the Cranes.

Application to set aside Final Award

11 On 10 September 2021, the appellant applied to the General Division of

the High Court by way of HC/OS 925/2021 (“OS 925”) to set aside the Final
Award. OS 925 was dismissed in its entirety on 25 May 2022.

The appeal in CA 32

12 CA 32 was filed on 5 August 2022 against the whole of the decision in

OS 925. The grounds relied on by the appellant on appeal were the same as
below. The appellant argued that the Final Award should be set aside under ss
48(1)(a)(iii) and/or 48(1)(a)(vii) of the Arbitration Act (Cap 10, 2002 Rev Ed)
(“AA”) as the appellant was unable to present its case or that there was a breach
of the rules of natural justice. The appellant contended that the Tribunal had

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allowed the respondent to advance a claim for damages (the “Damages Claim”)
for the first time after the issuance of the Interim Award without giving the
appellant a fair and reasonable opportunity to respond to this claim.

13 The second and alternative ground relied on by the appellant was that
the Final Award should be set aside under s 48(1)(a)(v) of the AA as the
Tribunal had not complied with the arbitral procedure agreed on by parties, ie,
to have one tranche of hearing without it being bifurcated into phases on liability
and damages. The Tribunal had instead proceeded to a bifurcation in which the
respondent was allowed to introduce the Damages Claim.

Application in SUM 22 for permission to adduce further evidence

14 On 1 November 2022, the appellant filed the present summons, SUM

22, under O 19 r 7(7) of the Rules of Court 2021 (“ROC 2021”) and s 59(5) of
the Supreme Court of Judicature Act 1969 (2020 Rev Ed) (“SCJA 1969”) for
the appellant to be at liberty to adduce further evidence at the hearing of the
appeal in CA 32. The appellant made that application on the basis that it had
found out after OS 925 had been decided that the Cranes were being advertised
for sale for US$1m to US$2m on an as is where is basis or US$3m to US$4m
in reconditioned operational condition. The appellant’s position was that the
evidence it sought to adduce (the “Further Evidence”) would show that the
respondent had lied to the Tribunal that the Cranes were merely worth their
scrap value when there was an available market for them.

15 The Further Evidence was contained in two draft affidavits. The first
draft affidavit was furnished by the Technology General Manager (the “TGM”)
of the appellant’s parent company. His evidence was that on 1 August 2022, he
had received an email from a vessel assets broker (“the Broker”) offering two

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offshore cranes for sale (the “Marketed Cranes”). He confirmed by way of the
model number and specifications stated in the email and a phone call with the
Broker that these were the Cranes and that they were on sale as functional cranes
and not for scrap. He had also received a similar email from the same Broker
earlier on 29 July 2022, offering the Marketed Cranes for sale. Further, the
company’s chief executive officer also received an email from the Broker on 5
September 2022 offering the two Marketed Cranes for sale.

16 The appellant then engaged a firm of professional marine surveyors to

inspect the Marketed Cranes. The second affidavit was furnished by a Marine
Consultant at the firm, who presented a report of the inspection he had
conducted and the photographs he had taken. The TGM’s evidence was that he
had reviewed the photographs and found that the Marketed Cranes had the same
serial numbers and project codes as well as the same unique parts as the Cranes
which were the subject of the Arbitration.

17 In its reply affidavit, the respondent contended that the Further Evidence
did not affect the Tribunal’s findings in its Final Award or the conclusion
reached in OS 925 that there was no breach of natural justice. The Further
Evidence comprised advertisements offering the Cranes for sale (with a price
tag of US$1–2m on an as is where is basis and US$3–4m in reconditioned
operational condition specified in one of the three emails sent). Notably, the
point was that the advertisements were not proof that the Cranes had been sold
so as to prima facie establish a market value that was determined on the basis
of a willing seller and willing buyer. The respondent also stated that the Cranes
could no longer be sold as functional cranes given their condition as reflected
in the photographs.

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COD v COE [2023] SGCA 29

18 Further, the respondent denied selling the Cranes in the open market.
Rather, it averred that it had sold the Cranes for scrap to a local company,
“Buyer 1”, on 27 August 2020 for S$185,000.00 before GST or S$92,500.00
per crane. In support of this claim, the respondent exhibited an invoice from
itself to Buyer 1 as well as its acceptance of the latter’s offer.

The parties’ submissions on SUM 22

Appellant’s submissions

19 The appellant’s submissions as the applicant in SUM 22 centred on the

materiality of the Further Evidence to its alleged ground of a breach of natural
justice. Essentially, the appellant contended that the Further Evidence
undermined the allegation made by the respondent in the Arbitration that there
was no market for the Cranes in their existing state and that the Cranes had no
value except as scrap metal. The Further Evidence also contradicted the
respondent’s allegation in OS 925 that the appellant was not prejudiced by the
alleged breach of natural justice since the Cranes had no market and value; in
fact, the new evidence would point to serious prejudice to the appellant in the
face of the contradictions. In other words, the prejudice suffered by the appellant
resulted from a breach of natural justice, ie, in being denied the opportunity to
investigate and present its own evidence on the Damages Claim.

20 The appellant submitted that since the Further Evidence came into
existence after the judgment date, the modified version of the Ladd v Marshall
requirements (the “Ladd v Marshall Modified Test”) as provided for in BNX v
BOE and another appeal [2018] 2 SLR 215 (“BNX v BOE”) (at [97]–[99])
would apply instead of the full-blown test in Ladd v Marshall [1954] 1 WLR
1489 (the “Ladd v Marshall test”). Applying the Ladd v Marshall Modified
Test, the Further Evidence was indeed relevant to matters of which evidence

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COD v COE [2023] SGCA 29

was sought to be given, was at least potentially material to issues in the appeal
and at least appeared to be credible. Even if the Ladd v Marshall test applied,
the appellant submitted that the requirements of the test were satisfied. First, the
Further Evidence could not have been obtained with reasonable diligence for
use in the hearing as it did not exist at the hearing of OS 925. Second, the Further
Evidence would probably have an important influence on the result of the case,
as the fact that the Broker was marketing the cranes for sale demonstrated that
the appellant could have adduced evidence of an available market for the Cranes
and their market value in their existing state if it had a reasonable opportunity
to respond to the respondent’s Damages Claim. Thirdly, the evidence was
apparently credible, as it was in the form of documents and there was no dispute
as to its authenticity.

Respondent’s submissions

21 The respondent’s position was that the appellant’s case in SUM 22 was
a “conjecture based on conveniently timed advertisements which [the appellant]
was conveniently the recipient of”. The respondent also submitted that it did not
make any misrepresentation or perpetrate any fraud at any stage of the
Arbitration.

22 In assessing the admissibility of the Further Evidence, the respondent

contended that the Ladd v Marshall test should apply as the evidence related to
whether there was an available market for the Cranes at the time of the
Arbitration. Applying the Ladd v Marshall test, the respondent submitted that
firstly, evidence of the alleged available market, if any, could have been
adduced by the appellant with reasonable diligence. Secondly, the Further
Evidence was not relevant as it did not show whether there was an available
market at the time of the Arbitration or even now. The evidence in fact reflected

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COD v COE [2023] SGCA 29

that the cranes were unserviceable and non-functional. Also, the Further
Evidence was a mere advertisement for sale and did not show there was a
market, let alone an available market. Further, the respondent no longer had
ownership, custody, possession and/or control over the Cranes as it had sold the
Cranes to Buyer 1. The appellant had also not confirmed with the Broker if the
respondent was behind the sale. Thirdly, the Further Evidence was not credible
as it lacked details as to how the Cranes were obtained or who had
commissioned the Broker to make the sale. The respondent also submitted that
it was suspicious that the Broker had only sent the first email to the appellant
on 29 July 2022 (four days after the decision in OS 925) when the appellant had
previously received unsolicited emails from the same Broker in October 2020
expressing interest in the Cranes, especially given the appellant’s failure to even
try to determine the identity of the party on whose behalf the Broker was selling
the Cranes.

Anterior issue: Whether a party should be permitted to adduce new

evidence to raise new arguments which had not been put before the Judge
in OS 925

23 We alluded to this anterior issue at [3] above. Before we discuss the

anterior issue in detail, we set out the background facts on a prior application
taken out by the appellant to adduce further evidence in OS 925, namely,
HC/SUM 991/2022 (“SUM 991”).

24 The background of SUM 991 was as follows. The appellant had sought
to adduce evidence that comprised:

(a) an email and valuation report by the same Broker;

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COD v COE [2023] SGCA 29

(b) various industry news reports and articles showing a market for
fibre optic cranes, and various articles and websites evincing possible
ways of dealing with the Cranes apart from selling them for scrap; and

(c) witness statements contained in an affidavit in specific response

to allegations raised in the affidavits of the respondent’s witnesses.

25 The email and valuation report (ie, item (a) above) were of especial
interest to SUM 22. The Broker’s email, which was dated 1 December 2021,
stated that the Broker was actively looking for all types of offshore cranes
currently available for sale. Meanwhile the valuation report, which was dated
10 March 2022, was furnished by a director of the Broker in response to Mr
Winston Kwek’s (counsel for the appellant) request for a valuation. The
valuation report purportedly valued the Cranes at US$2.5 to US$3m each as of
2022 on the same footing as steel wire cranes and clarified that whilst the Broker
was aware of each Crane in stock, it had not been approached by the respondent
to market or sell the Cranes.

26 During the oral hearing of SUM 991, counsel for the appellant
(instructed), Mr Chan Leng Sun SC (“Mr Chan”), asked that the Judge stand
over SUM 991 until the end of the main hearing. Counsel for the respondent,
Mr Tan Boon Yong Thomas, submitted that this was impractical and that should
the court allow the application in SUM 991, the respondent ought to be granted
leave to respond. The upshot of that exchange would result in an adjournment
of the setting aside hearing. Mr Chan then stated that they would make a
“judgment call” to withdraw SUM 991, “bearing in mind that if [the appellant]
lose[s] these [two] days, [the appellant] [has] no idea when the next hearing
might be”. The Judge did note that the matter could also go to another Judge in
any event, but accepted Mr Chan’s “judgment call” that the appellant could

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proceed with the hearing of the setting-aside application without the aid of
evidence sought to be adduced in SUM 991.

27 Although the appellant did not rely on all the same documents in SUM
991 and in SUM 22, importantly the sets of correspondence with the Broker in
both summonses pertained to the same subject matter which was whether the
Cranes had any market value (as opposed to only scrap value). The new
evidence in SUM 991 on the purported market value would have suggested that
as of late 2021 to early 2022, the Broker considered the Cranes to be of value
and also that the Broker itself was looking to buy offshore cranes in general. By
the time SUM 22 was filed, the Broker appeared to have come into possession
of and was offering to sell the Cranes in July to September 2022 either on an as
is where is basis or in a reconditioned state. There was a conspicuous absence
of information as to when and how the Broker purportedly came into possession
of the Cranes, but the point is that one of the advertisements dated 29 July 2022
(after the decision in OS 925) had given a price tag premised on whether they
were being sold on an as is where is basis or in a reconditioned state. Put simply,
although SUM 22 relied on emails that came into existence only after the
judgment in OS 925, the fact remained that the subject matter in question was
the same, having already been raised in an affidavit in support of SUM 991.

28 Against this backdrop, we formed the view that SUM 22 was an

application which was flawed and indeed an abuse of process for at least three
main reasons. First, the application offended the rule of finality in proceedings.
SUM 22 was demonstrably a reversal of the position the appellant had taken
before the Judge below. The appellant had already known of evidence
suggesting that the Broker had considered the Cranes to be of substantial value
and not merely of scrap value before OS 925 was heard but had decided to
proceed with OS 925 without the evidence on the available market for the

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COD v COE [2023] SGCA 29

Cranes and their market value which it had sought to adduce in SUM 991. The
appellant was now attempting to rely on the Further Evidence to raise and make
new arguments at the appeal in CA 32 that the respondent had been wrong in
suggesting that the Cranes were of scrap value only, or even to the extent that
the respondent had lied to the Tribunal about the scrap value of the Cranes.
Notably, such arguments were not put forward during the hearing of OS 925.
Therefore, our second reason was that the Further Evidence sought to be
adduced in SUM 22 could hardly form the basis of an appeal moving forward.
Our third reason was that SUM 22 was an abuse of process as it was an attempt
to fill the evidential gap that arose from the appellant’s “judgment call” in the
proceedings below rather than from a dissatisfaction with the decision below.
We now elaborate on the three reasons.

29 We begin with UJN v UJO [2021] SGCA 18 (“UJN v UJO”). The facts
are not relevant to the present application, but the propositions enunciated by
this court in that case are apposite. A court would generally be disinclined to
allow a party to adduce fresh evidence on appeal if that evidence is in aid of a
position which is inconsistent with the applicant’s position below (UJN v UJO
at [7]):

… The interest of finality in proceedings is still relevant and the

interest to hold parties to their positions is equally, if not more,
important as it would often be unfair to the opponent and to
the court if a party were to take one position in the hearing
below and yet be allowed to resile from it on appeal. The waste
of court resources is another factor. Indeed it could also be said
that running a contrary case on appeal is an abuse of process
as the appeal would not really arise from dissatisfaction with
the decision below but really with the conduct of the case below
on the part of the dissatisfied party…

30 As stated, SUM 22 was not the first time the appellant had sought to
adduce further evidence in the sense of fresh evidence in relation to the question
of whether there was an available market for the Cranes and their market value,

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COD v COE [2023] SGCA 29

and whether the appellant could have adduced evidence to establish this during
the Arbitration. We have already explained what had happened to SUM 991.

31 Going further, it is worth noting that the appellant did not adduce
evidence of an available market for the Cranes and their market value in the
arbitration. That meant that the evidentiary record of the arbitration did not
contain such evidence for the Judge to consider. This was even though the
respondent’s argument that there was no market for the Cranes had already been
in play during the Arbitration. Returning to the Tribunal’s observations
regarding the appellant’s contention at the Arbitration (ie, that the appellant had
been misled into thinking that the respondent was not claiming for a remedy of
the price of the Cranes less scrap value and did not have a chance to address this
claim with evidence or cross examination), the Tribunal had found in its Final
Award that:

57. In like manner, I find that by virtue of the [respondent’s]

Statement of Claim, the [appellant] would have had fair notice
of the alternative case for damages should specific performance
be granted. I do not agree with the [appellant’s] contention that
it was unable to know the case it had to meet: the [appellant]
would have had sufficient notice of the [respondent’s] alternative
claim for damages, and accordingly would have been aware of
the need to address the various issues relating to a claim for
damages. That the [appellant] did not choose to do so, for
example by adducing evidence on the issue of damages through
its witnesses, or challenging the [respondent’s] entitlement to
damages, should not be attributed to the manner in which the
[respondent] had run its case.
…
61. In my view, [the appellant’s]'s grievance stems from the
fact that it did not adduce nor seek to challenge the evidence
that [the respondent] had adduced in the proceedings in
relation to damages. [The appellant] contends that [the
respondent] never adduced evidence going towards a claim for
the cost price minus scrap value.
62. But is this really the case? In respect of evidence
supporting a claim for the cost price of the Cranes, it is a

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COD v COE [2023] SGCA 29

straightforward matter of producing the relevant contracts in

question to derive the price of each Crane: it is not disputed
that both contracts for the Cranes have indeed been adduced.
In respect of the evidence of the Cranes' scrap value, such
evidence has in fact been put forward by [the respondent], and
can be located in the Affidavit of Evidence in Chief ("AEIC") of
one of [the respondent]'s witness, [Y]. [Y] posited a value
attributable to the scrap value for the Cranes, and had
indicated how that value was derived, with several documents
to support his contention. It is clear from paragraph [275] of
[Y]'s AEIC that [the respondent] was seeking damages in the
event that specific performance was not granted.
63. I find that the [respondent] did in fact adduce evidence
going to the scrap value of the Cranes. The [appellant] was free
to adduce evidence to the contrary, or to test the veracity of the
evidence adduced by the [respondent] during the substantive
hearing…
64. The [appellant] did not do so despite having ample
opportunity.
[emphasis added]

32 It was plain from the Final Award that a key gap in the appellant’s case
was that it had not adduced evidence to show that the Cranes had market value.
Evidence of market value was also not before the Judge hearing the application
to set aside the arbitral award in OS 925, given that the appellant had made the
considered decision not to proceed with SUM 991. It was from the conduct of
the case first before the Tribunal and then before the Judge below that the filing
of SUM 22 manifested an abuse of process by a dissatisfied party who deployed
a procedural tool to run a contrary case on appeal. SUM 22 was an attempt to
fill the evidential gap in order to run new arguments that were not made below
to the Judge. As such, the new evidence and arguments could not form the basis
of an appeal.

33 For the reasons stated, SUM 22 was dismissed in limine.

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COD v COE [2023] SGCA 29

Admissibility of new evidence on appeal to set aside an arbitral award on

non-jurisdictional grounds: the merits of SUM 22

34 Having dismissed SUM 22 in limine it was strictly not necessary to

express our views on the merits of the application proper. However, as the
parties had submitted on the merits, we considered them for completeness.

35 OS 925 was the appellant’s application to set aside the Final Award on
non-jurisdictional grounds, namely that there had been a breach of natural
justice, that the appellant was unable to present its case and that the Tribunal
had proceeded in a manner contrary to the arbitral procedure agreed by parties.
It was important to emphasise that the role of the supervisory court is one of
minimal curial intervention, that the court will not interfere with the merits of
the case and that a setting-aside application is not an opportunity for the
appellant to take a second bite of the cherry.

36 It is with these propositions in mind that a court approaches an

application by a party to adduce further evidence in the sense of new or fresh
evidence to aid its application to set aside an arbitral award, whether at first
instance or on appeal. When such an application is brought, the test to be applied
for such an application is either the Ladd v Marshall test or the Ladd v Marshall
Modified Test. Both the Ladd v Marshall test and the Ladd v Marshall Modified
Test are meant to uphold the procedural interest in imposing a degree of finality
in the parties’ opportunity to obtain and produce evidence in dispute-resolution
proceedings (Vitol Asia Pte Ltd v Machlogic Singapore Pte Ltd [2021] 4 SLR
464 at [42]).

37 As provided for in s 59(4) of the SCJA 1969 read with O 19 r 7(7) of the
ROC 2021, should the Further Evidence not relate to matters occurring after the
date of the decision appealed against, then an applicant must show special

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grounds warranting the admission of further evidence in an appeal by satisfying

the three cumulative conditions in the Ladd v Marshall test (see BNX v BOE at
[74]; AnAn Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co)
[2019] 2 SLR 341 at [21]), ie, that:

(a) the evidence could not have been obtained with reasonable
diligence for use in the lower court;

(b) the evidence would probably have an important influence on the

result of the case, although it need not be decisive; and

(c) the evidence must be apparently credible, although it need not be

incontrovertible.

38 However, if the Further Evidence relates to matters occurring after the

date of the decision appealed against, s 59(5) of the SCJA 1969 provides that
the evidence “may be given to the Court of Appeal without permission” and O
19 r 7 of the ROC 2021 provides that it is exempt from the requirement that
further evidence may not be given except on special grounds. The court should
hence apply the Ladd v Marshall Modified Test (see BNX v BOE at [97] to [99])
which entails the following:

(a) to ascertain what the relevant matters are, of which evidence is

sought to be given, and ensure that these are matters that occurred after
the trial or hearing below;

(b) to satisfy itself that the evidence of these matters is at least

potentially material to the issues in the appeal; and

(c) to satisfy itself that the material at least appears to be credible.

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Additionally, where the application to adduce further evidence pertains to

appeals against decisions regarding the setting aside of an arbitral award on non-
jurisdictional grounds, the Singapore courts have been guarded in permitting
the admission of evidence that is relevant to the court’s consideration of the
engaged grounds of setting aside, and in declining to admit further evidence that
seeks to challenge the arbitral tribunal’s findings on the merits of the parties’
underlying disputes (see, for example, PT Perusahaan Gas Negara (Persero)
TBK v CRW Joint Operation [2015] 4 SLR 364 at [40]–[44]). That being said,
fraud or corruption is one non-jurisdictional ground on which the court may
generally be more open to the admission of further evidence. We are here
referring to the ground that the making of the award was induced or affected by
fraud or corruption (s 48(1)(a)(vi) of the AA). This is because fresh evidence is
often necessary to show some degree of fraudulent or corrupt activity which had
induced the award.

39 Of course, at the end of the day, the court’s approach to further evidence
in the sense of fresh or new evidence adduced for setting-aside applications on
non-jurisdictional grounds is a fact-dependent exercise, and the court must pay
attention to the nature of the ground for setting-aside relied on by the parties,
the facts and circumstances of the case, as well as the question of whether this
evidence could have been brought prior to the challenge (See, for example,
Radisson Hotels APS Danmark v Hayat Otel Isletmeciligi Turizm Yatirim Ve
Ticaret Anonim Sirketi [2023] EWHC 892 (Comm) at [127]–[128]). We see, for
example, in CEF and another v CEH [2022] 2 SLR 918 (at [30] and [54]–[56])
(“CEF v CEH”), that the court had admitted and considered additional evidence
relevant to the question of whether the appellants’ argument that an order made
by the arbitral tribunal (the “Transfer Order”) was impossible or unworkable
was in fact an afterthought and a contrivance. While this may at first blush

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appear to be an admission of evidence of matters going to the merits of the

tribunal’s decision, we note that the appellants had relied on the alleged
unworkability of the Transfer Order to say that the same order should be set
aside under Art 34(2)(a)(iv) of the UNCITRAL Model Law on International
Commercial Arbitration as the arbitral procedure was not in accordance with
the agreement of the parties (at [32]). On the specific facts of that case, the court
was hence justified in admitting this evidence and had not gone beyond the
limits of its supervisory jurisdiction.

40 The case of BNX v BOE was also illustrative in this regard. In BNX v
BOE, BNX had appealed against the dismissal of its application to set aside an
arbitral award against it. The two sets of documents which BNX sought to
adduce on appeal were intended to support non-jurisdictional grounds for
setting aside the arbitral award, namely, to show that the Award was induced or
affected by fraud, there was a breach of the rules of natural justice in connection
with the making of the award by which BNX’s rights were prejudiced and/or
the award was contrary to public policy (at [59]). Applying the Ladd v Marshall
test to the first set of documents, this court found that the documents could have
been obtained if BNX had acted with reasonable diligence during the
arbitration, and the omission to disclose these documents in the arbitration also
did not suffice to show fraud on the part of BOE (at [77], [86] and [88]). This
court also found that the documents were not relevant and in any event, it was
not shown that the same result would not have ensued on the basis of the
alternative independent grounds on which the tribunal arrived at its decision (at
[91]–[94]). As for the second set of documents, the court applied the Ladd v
Marshall Modified Test and found that the evidence was of what had been told
to BOE’s representatives before the arbitration and hence did not concern
matters after the date of the decision below (at [102]). This court also found that

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the matters that the documents purported to relate to were not potentially
material as they did not show that BOE’s representatives had given false
evidence during the arbitration and the setting aside proceedings (at [103]).

41 Returning to the present application, the appellant had applied to rely on

the Further Evidence to establish that a breach of the rules of natural justice had
occurred in connection with the making of the Final Award by which its rights
had been prejudiced. Unlike CEF v CEH, there was no inevitable or excusable
overlap present between the issues determined in the underlying Arbitration and
the issues on appeal in CA 32. As such, the Further Evidence could only have
been admitted if it pertained to the Tribunal’s conduct of the arbitration and
whether that conduct was in breach of the rules of natural justice – in other
words, “the overall conduct of the proceedings with particular attention paid to
the conduct of the tribunal and the parties themselves” (Dongwoo
Mann+Hummel Co Ltd v Mann+Hummell GmbH [2008] 3 SLR(R) 871 at [55]).
We hence turned to consider whether this was indeed the case.

42 In SUM 22, the Further Evidence related to emails sent after the decision
in OS 925. As such, s 59(5) SCJA 1969 was applicable to the Further Evidence
and we hence applied the Ladd v Marshall Modified Test in determining
whether the Further Evidence should be admitted for the purposes of CA 32.

43 In our view, the appellant was not able to satisfy the requirements of the
Ladd v Marshall Modified Test. Specifically, the Further Evidence was not at
least potentially material to the issues on appeal in CA 32.

44 The appellant’s argument was that the Further Evidence would show
that there was indeed a market for the Cranes and that the appellant had been
prejudiced as it had not been able to adduce evidence to this effect before the

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Tribunal. Its supporting affidavit for SUM 22 stated that the respondent’s
representations in the Arbitration and in OS 925 that the Cranes had no market
and were worth only scrap value were false, and that the respondent did not
believe these representations to be true. The appellant’s written submissions
maintained that the Further Evidence demonstrated the severe prejudice
occasioned to the appellant as the Cranes were clearly marketable and valuable
in their existing state. At the oral hearing, when asked how the Further Evidence
in 2022 established that the respondent had misled the Tribunal in 2015, Mr
Chan then said it did not go directly to the question of misleading but to the
question of whether the cranes had value. But even on that basis, the appellant
faced difficulties in establishing the potential materiality of its fresh evidence.

45 We agree with the respondent’s submissions that the appellant had been
“happy to proceed” with OS 925 without the evidence in SUM 991 and that
conduct suggested either that the appellant did not believe that there had been
an available market at the material time, or that it “did not believe that such
evidence was relevant or important enough to their case before the High Court”.
Putting aside the appellant’s conduct that undermined its application in SUM
22, there are other reasons in play.

46 The Broker’s emails dated 29 July 2022, 1 August 2022 and 5 September
2022 did not show that there was a market for the Cranes or their market value.
The respondent submitted that the email merely stated that the Broker was
offering the Cranes for sale, and only to the appellant which had rejected the
Cranes in the first place. Indeed, the emails stated only that the Broker “can
offer for sale” the two Cranes. Further, only the email dated 29 July 2022
provided an indicative pricing of the Cranes, while the other two emails offered
to “provide full specifications and guidance on pricing” if the appellant was
interested. Taken at its highest, the evidence only suggested that there was a

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seller of the Cranes with indicative prices and would not be potentially material
to the issues of whether there was a market for the Cranes and whether they had
any value higher than scrap value.

47 Moreover, as mentioned above at [31], the Tribunal had noted in its

Final Award that the appellant had failed to adduce evidence on the existence
of an available market for the Cranes and the market value of the Cranes and to
challenge the respondent’s evidence in relation to damages. To suggest that the
Further Evidence would show that the appellant had been prejudiced in being
deprived of an opportunity to adduce evidence in this regard would in fact turn
reality on its head, and require the court to intervene in the Tribunal’s factual
finding as to the market for and value of the Cranes – this was an untenable line
of inquiry for this court and did not pertain to the live issues on appeal in CA
32.

48 Secondly, the date of the breach as determined by the Tribunal was

2015. The indicative value provided in the Further Evidence was provided by
the Broker as of 2022. Simply put, the appellant had not adduced evidence about
the value of the Cranes at the time of the breach. It was artificial for the appellant
to try to make use of the supposed value of the Cranes in 2022 as a proxy to
suggest that at the time of the breach in 2015, there was a market for the Cranes
and that their values were more than their scrap values.

49 Thirdly and for completeness, it would in any event have been fanciful
to suggest that evidence of the value of the Cranes in 2022 would show that the
Tribunal was misled by the respondent in light of an evidential gap of seven
years. This was especially because there was no evidence that the Broker was
representing the respondent. To the contrary, the respondent had furnished
evidence in response in SUM 22 to say that they had sold the cranes to Buyer 1

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at scrap value in August 2020 after the Interim Award which was issued in April
2020. Payment for the cranes was then made in September 2020. What had been
done with the Cranes after the respondent had sold them would have no bearing
on the bona fides of the respondent at the time of the arbitration. We digress to
mention the evidence in the respondent’s reply affidavit that Buyer 1 had sold
the Cranes to a third party, “Buyer 2”, for the price of S$400,000 before GST.
As was highlighted to counsel for the appellant at the oral hearing of SUM 22,
any buyer of the Cranes (even if they had bought them for scrap) would be
entitled to maximise its returns, and this had nothing to do with the respondent
who had already sold the Cranes. The assertion that the respondent had lied to
the Tribunal on the scrap value was at best speculative, and again was not
potentially material to the issues in the appeal.

50 As such, the requirement for the evidence to be at least potentially

material under the Ladd v Marshall Modified Test had not been made out. Not
only did the Further Evidence not in any way point to any concealment or
disingenuous conduct on the part of the respondent, the fact that a claim for
damages and the scrap value of the Cranes were issues already canvassed in the
Arbitration, as highlighted by the Tribunal in its Final Award, further
diminished any potential relevance of the Further Evidence in explaining away
why the appellant did not deal with the claims and evidence that were clearly
placed before it in the Arbitration.

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Conclusion

51 For the foregoing reasons, we dismissed SUM 22.

Judith Prakash Steven Chong

Justice of the Court of Appeal Justice of the Court of Appeal

Belinda Ang Saw Ean

Justice of the Court of Appeal

Chan Leng Sun SC, Rachel Low (instructed counsel); Kwek Choon
Lin Winston and Lim Zhi Ming, Max (Rajah & Tann Singapore LLP)
for the applicant;
Tan Boon Yong Thomas, Amos Julian Sivasupramaniam and Lee
Yong Yee (Haridass Ho & Partners) for the respondent.

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